Court File and Parties
COURT FILE NO.: CV-19-00000419 DATE: 2020 Feb 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Philip William Crawford and Hailey Brooke Crawford, Plaintiffs AND: Standard Building Contractors Limited (Federal Corporation 1115109-6), Standard Paving Limited (Nova Scotia Registry ID #3223128) and Shane Ross, Defendants
BEFORE: Honourable Madam Justice Helen MacLeod-Beliveau
COUNSEL: Mr. David M. Adams for the Plaintiffs Ms. Christina J. Wallis for the Defendants
HEARD: in writing
COSTS ENDORSEMENT
[1] This costs endorsement relates to matters heard by me on January 23, 2020 in Crawford v. Standard Building Contractors Limited, 2020 ONSC 687.
[2] There were two motions heard that day as follows:
- The defendants’ motion to discharge the Mareva injunction order made December 20, 2019 in its entirety; or alternatively that the said order be varied; and
- The plaintiffs’ motion that the defendants be found in contempt of court for non-compliance with the terms of the Mareva injunction order made on December 20, 2019.
[3] I ordered that costs of the day on January 23, 2020 were to be determined by me based upon written submissions filed. I have received counsels’ submissions including reply submissions by the plaintiffs.
[4] The plaintiffs seek costs on a substantial indemnity basis of $5,109.30 plus HST of $664.21 for a total of $5,773.51 plus disbursements of $911.04 inclusive of HST for a total of $6,684.55 payable within 30 days. On a partial indemnity basis, the costs sought by the plaintiffs are $3,406.20 plus HST of $442.81 for a total of $3,849.01 plus disbursements of $911.04 inclusive of HST for a total of $4,760.05 payable within 30 days.
[5] I note that a 90% and 60% reduction was applied in error in the plaintiffs’ costs outline to both fees and disbursements. Those percentage reductions are appropriate only as to fees. Disbursements, if found to be reasonable, are assessed at the actual cost plus HST for both substantial or partial indemnity cost awards.
[6] The defendants seek that either no costs be awarded or that costs of their motion to set aside the injunction order be reserved to the Justice hearing the injunction motion on the merits after cross-examinations have been held. The defendants seek additional costs on a partial indemnity basis of the contempt motion in the amount of $571.55 inclusive of disbursements and HST.
[7] Cost awards are discretionary. Rule 57.01(1) of the Rules of Civil Procedure sets out the general principles in awarding costs and lists the factors to be considered in the discretion of the court. I have carefully considered all the factors as set out in Rule 57.01(1), together with the principle of proportionality in awarding costs.
[8] This matter is of great importance to the plaintiffs who are left homeless in what I have found to be a prima facie case of fraud committed upon them by the defendants in relation to their insurance proceeds advanced to them to rebuild their home after it was destroyed by fire. After the preliminary injunction order was made, the defendants chose to proceed with their motion to have the order set aside completely rather than seek reasonable variations of the order. The defendants’ materials were deficient and lacked specificity as to the details of their assets, even when that detail was required by the court order that was made.
[9] I find that the bringing of the contempt motion by the plaintiffs was entirely reasonable considering the injunction order made freezing the assets of the defendants, who nonetheless continue in business and retained counsel to appear on both these motions. The defendants were unsuccessful on the substantive relief sought on their motion in having the injunction order set aside or vacated. The defendants received some very minor variations to the injunction order as specified in my reasons given on the motion.
[10] The contempt motion was adjourned as the defendant had until 5:00 pm the day the motion was returnable to comply. I found that contempt per se did not exist that day, but that a contempt finding may be made after the cross-examinations are held when the matter is brought back before the court.
[11] I note that the costs of the main motion up to and including December 20, 2019 leading up to the return date of the injunction motion and any and all other outstanding costs of both the injunction motion and the contempt motion are already reserved to the Justice hearing the matter on the merits after the cross-examinations have been held. The exception to that costs order is the costs of the January 23, 2020 hearing before me which I will determine.
[12] In these circumstances, I find that an award of costs at the substantial indemnity rate is appropriate with a reduction in the total amount claimed for fees relating to the review and preparation of pleadings in the action of $550.00, which fees are more properly claimed before the Justice hearing the matter on the merits after the cross-examinations have been held. As submitted by defendants’ counsel, I have in addition, reduced the fees claimed by the plaintiffs for the short service upon defendants’ counsel of the contempt motion record and factum by a further $400.00. I find all the plaintiffs’ disbursements to be reasonable and they are allowed as claimed.
[13] In the result, I fix costs of the day of January 23, 2020 for both motions heard, for that day only, in the amount of $4,159.00 for fees, plus HST of $540.67 plus disbursements inclusive of HST of $911.04 for a total costs award of $5,610.71 payable by the defendants to the plaintiffs on or before March 20, 2020 which I find to be reasonable and sufficient time for payment of the costs ordered in all the circumstances.
[14] The defendants are granted leave to pay these costs as ordered as the sole exception to the current freezing order made in relation to the defendants’ assets for the sole purpose of payment to the plaintiffs of these costs as ordered to the limited extent of $5,610.71 and for no other purpose.
[15] Order to issue accordingly.
MacLeod-Beliveau J. Date: February 27, 2020